By Jennifer T. Nijman
Finally, there is a substance that, when sent to a CERCLA Superfund Site, does not subject a party to liability. Many of us grew up in the environmental field understanding that anything sent to a site subjects a party to liability – either as a hazardous substance itself, because it contains hazardous substances, or even because it could cause the migration of other hazardous substances. As Bob Dylan said, The Times They Are a-Changin’.
In a summary judgment opinion in Hobart Corporation, et al. v. The Dayton Power & Light Company, et al., 3:13-cv-115, (issued 9/23/2019), the United States District Court for the Southern District of Ohio held that untreated wood and wood ash from burning untreated wood is not a CERCLA “hazardous substance”. The Court found that even if wood or wood ash contains small amounts of naturally occurring hazardous substances, that does not trigger CERCLA liability. The opinion, in a contribution case, considered whether two waste hauling companies could be found liable under CERCLA as transporters of “hazardous substances” where the companies had disposed of wood pallets, cardboard, and limited construction debris. The Court found that untreated wood was not a “hazardous substance” under CERCLA because “the mere fact that wood naturally contains elements that are on the list of hazardous substances does not mean wood itself is a hazardous substance.” The Court extended this reasoning to wood ash from burning untreated wood. The Court’s decision declined to follow other decisions that stated that any trace component of a hazardous substance triggers CERCLA liability, finding that the prior decisions involved manmade materials with components of a hazardous substance, not naturally occurring materials. The Court reasoned that extending this standard to naturally occurring materials would produce an absurd result because nearly everything contains small amounts of naturally occurring hazardous substances.
The Court revisited its finding in a later summary judgment decision in favor of another PRP at the same site that argued it could not be liable as an owner of an air curtain destructor located at the site because the material burned in the air curtain destructor was wood pallets (Id., issued 9/30/2020). The Court confirmed, based on its earlier decision, that the wood pallets themselves were not hazardous substances that would subject a party to CERCLA liability. Although plaintiffs added some new witness testimony that some pallets reportedly were stained, there was no expert evidence that ash from burning “stained” pallets would deposit hazardous materials on the site. Without the expert testimony, the Court agreed that there was no evidence of a “disposal” of a hazardous substance from the air curtain destructor, as defined by CERCLA. The Court did not hold that the burning of wooden pallets partially stained with ink, paint or oil can never constitute a “disposal” under CERCLA. Rather, the Court granted summary judgment because plaintiffs had no admissible expert witness testimony to prove this essential element of their claim. Plaintiffs in the contribution case sought entry of a final judgment or, alternatively, certification for an interlocutory appeal of the decision, which the Court denied (Id., issued 3/30/2021).